Kuldeep Kumar Naithan vs Union Of India And Others

The claim of the applicant in the present OA is limited to the following reliefs:

a) Set aside the order dated 16.12.2015 together with the order dated 12.01.2015 passed by the respondents.

b) Direct the respondents to grant disability pension to the applicant by treating the applicant's disability as attributable to/aggravated by military

service;

c) Direct the respondents to pay disability pension to the applicant @ of 75% for life w.e.f. 01.12.2012 (Date of applicant's retirement) by rounding off

the applicant's disability to 75%;

d) Direct the respondents to pay 12% interest on the arrears of disability pension w.e.f. 01.12.2012; and

e) Issue such other order/direction as may be deemed appropriate in the facts and circumstance of the case.

By way of present OA the applicant has put challenge to Letter No. 13415/IC-39544L/A0C/MP-6(F)/121/2015/ Appeal/AG/PS-4(Imp-II) dated

16thDecember, 2015 denying him disability pension.

The facts giving rise to the filing of present OA are that the applicant was commissioned in Indian Army as an officer in the Army Ordinance

Corps (AOC) on 13th June, 1981 and retired from service on 30th November, 2012, after attaining the age of superannuation. At the time of release,

he was brought before duly constituted Release Medical Board and was found to be suffering from disabilities ""TRAUMATIC OPTIC

ATROPHY(RE) at the rate of forty per cent and PSEUDOPHAKIA (LE)"", at the rate of six to nine per cent, composite fifty per cent, for life.

However, the Release Medical Board, in the absence of Court of Inquiry Proceedings or Injury Report for the injury suffered by the applicant as a

result of an accident, which ultimately resulted in the disabilities aforementioned, declined to give any definite opinion with regard to its

attributability/ag,gravation to Military Service. The applicant, vide letter dated 12th January, 2015, was informed that the Competent Authority (ADG

PS) has decided that the applicant's disabilities were held as neither attributable to nor aggravated by Military Service. The appeal filed by the

applicant against this order was also dismissed vide order dated 16th December, 2015, impugned herein.

According to the applicant, the relief sought by him in the instant matter is squarely covered by the judgment of the Hon'ble Supreme Court

rendered in Dharamvir Singh Vs. Union of India (2013) 7 SCC 316 case and his claim for disability pension is also supported by the applicable rules.

On the other hand, learned counsel for the respondents has contended that the claim of disability for ID ""TRAUMATIC OPTIC ATROPHY (RE)

and PSEUDOPHAKIA (LE)"" at the composite rate of fifty per cent, for life put-forth by the applicant has been found to be ""Neither Attributable to

Nor Aggravated by Military Service"" by the Competent Authority hence, he is not entitled to disability pension for the above disabilities. It is further

contended that the claim of the applicant for grant of disability element of disability pension was rejected under Regulation 81 of Pension Regulations

for the Army, 2008, Part-I.

We have considered the submissions advanced by learned counsel on both sides and have also perused the documents available on records. In the

light of rival submission, the core question before us is as to whether the disabilities of the applicant are attributable to or aggravated by military

service.

In this connection, we have noted that as regards the disability ""TRAUMATIC OPTIC ATROPHY (RE), the reason mentioned in the impugned

order is ""There is no documentary evidence of 1984 when the injury took place and you remained in SHAPE I for the disability for 28 years ""and as

regards the PSEUDOPHAKIA (LE)"" it is mentioned in the reason column that ""ID is an age related cataract. The ID is a degenerative process in the

normal course of events and there is no history of service related trauma, infection or exposure to UV rays or bright flashes of light exposure to drugs

or toxins or any metabolic disorder."" On the contrary, we find from the documents available on record that the applicant while posted at COD Agra

had gone to Air Force Station, Khemaria, for collecting some material relating to Radar System by a military vehicle which came back after dropping

him and while coming back on a motor cycle he met with an accident and received severe head injury. The applicant was treated at Military Hospital,

Agra for the head injury and right side blindness, i.e., OPTIC ATROPHY. The Commanding Officer of the applicant, while counter signing the

application, has verified the fact that the disability ""TRAUMATIC OPTIC ATROPHY (RE) was caused due to the accident of the applicant, as

mentioned in the OA. As regards his disability ""PSEUDOPHAKIA (LE),"" is concerned, we agree with the opinion of the Release Medical Board that

it is an age related disability (Cataract).

In view of the above, it is clearly evident that the disability of the applicant i.e. ""TRAUMATIC OPTIC ATROPHY (RE)"" was originally triggered

due to injury suffered by him on meeting with an accident while performing official duty. Since this disease relates to optic nerve, it is clear that a head

injury in a road accident can cause this disease in the long run. Therefore, considering all issues and evidence available on record, we would like to

give benefit of doubt to the applicant and his disability ""TRAUMATIC OPTIC ATROPHY (RE)"" is to be considered as attributable to military service

in the light of the well settled law by Hon'ble Supreme Court in the case of Dharamvir Singh (supra).

In view of the aforesaid judicial pronouncement and further taking into account all the circumstances, we hold that the applicant is entitled to

Disability Element of Pension and, therefore, his disability, i.e., TRAUMATIC OPTIC ATROPHY (RE)""at the rate forty per cent is considered as

attributable to military service.

So far as the rounding off is concerned, in the light of the decision of the Hon'ble Supreme Court in the case of Union of India and Ors. Vs. Ram

Avtar and Ors. (Civil Appeal No.418 of 2012 decided on 10th December, 2014), we are of the considered opinion that the applicant is entitled to the

benefit of rounding off from forty per cent to fifty per cent for life with effect from the date of his discharge from service. However, as per the law

settled by Hon'ble Supreme Court in the case of Shiv Dass Vs. Union of India and Ors. 1(2007 9 SCC 274 1the arrears are restricted for a period of

three years preceding the date of filing of the OA. The OA was filed on 7th September, 2016.

In view of the aforesaid OA is allowed and the respondents are directed to comply with this order within four months from the date of receipt of a

copy of this order. In default it will carry interest at the rate of eight per cent per annum till the actual payment is made.

No order as to costs.

Pronounced in open Court on this 19th day of November, 2019.